The Government’s plan for living with Coronavirus – what does it mean for employers?

On 21 February 2022, the Government announced its plan for living with Coronavirus in the weeks and months to come.

Among several key changes are:

• from 24 February 2022, the removal of the requirement to self-isolate after a positive test
• from 24 March 2022, the end of the Statutory Sick Pay amendments relating to Coronavirus
• from 1 April 2022, the end of free universal rapid tests for Coronavirus.

The changes mean that from 1 April 2022, Coronavirus will effectively no longer attract special treatment in law, even for employers.

Here, we consider these three changes and set out the considerations for employers:

1. The removal of the requirement to self-isolate after a positive test.

Whilst the Government will continue to encourage people to self-isolate, there will be no legal requirement to do so.  Employees will also no longer be required to tell their employer that they have Coronavirus.

Employers will need to consider whether they will still require their staff to stay away from work if they test positive, bearing in mind that tests themselves will soon no longer be widely available so staff may be unaware that they have Coronavirus until they show symptoms.

If employers do require staff to remain away from work before symptoms make them unfit to attend, they are likely to need to offer employees full pay (rather than sick pay) if they cannot work from home, as the employee is fit to work.  The employer could consult with staff to change contracts to state that employees who contract Coronavirus but have no symptoms will not be paid, but such a move may be unpopular and could discourage staff from reporting that they have Coronavirus.

Employees who develop symptoms and are too unwell to work should report their absence following the organisation’s Absence Policy.  If they are eligible they will receive Statutory Sick Pay as a minimum.

Employers may need to consider encouraging employees to take greater personal responsibility for assessing their fitness to work and in particular for making a judgement about whether they should be in close proximity to their colleagues.

If an employee is reluctant to work with a colleague because they have tested positive, the individual circumstances will need to be looked at.  It may be possible for mask-wearing, social distancing, enhanced cleaning or other measures to be (re)introduced to lower the risk of transmission in this situation.  If an employer is satisfied they have done all they can to make the workplace safe and an employee refuses to attend, this could be treated as misconduct and dealt with under the Disciplinary Policy, but employers will need to be mindful of potential whistleblowing concerns, and any health conditions or disabilities which might make an employee more vulnerable to Coronavirus if this played a part in their decision not to attend work.

2. The end of the Statutory Sick Pay amendments relating to Coronavirus.

Statutory Sick Pay eligibility was amended during the pandemic in two main ways.  Firstly, employees were entitled to SSP if they tested positive or had symptoms of Coronavirus from the first day of absence, rather than after the usual three ‘waiting days’.  This amendment will end on 24 March 2022 and normal SSP rules will be reinstated.  Secondly, the Government offered a rebate scheme, where eligible employers could claim back up to two weeks SSP for employees who were off sick because of Coronavirus. The scheme will close for absences after 17 March 2022 and employers have until 24 March 2022 to submit any new claims. After this time, there will be no rebate for coronavirus-related SSP.

For employers, these changes mean that Coronavirus will be treated the same as any other illness that makes an employee unfit for work – in other words, employees who are unwell with Coronavirus will not be entitled to any pay for the first three ‘waiting days’ (including non-working days) of their absence unless employers offer Company sick pay.  Employers who do not currently offer Company sick pay may decide to introduce such a scheme to encourage employees to stay away from work if they are unwell, as many employees may have no option to continue attending work for financial reasons even if they are unwell.

3. The end of free universal rapid tests for Coronavirus.

From 1 April, the Government will no longer offer free lateral flow or PCR tests to most of the population.  It is expected that certain groups of people who may be at higher risk from contracting Coronavirus, and particular sectors which support those individuals, will be able to access free tests although further guidance is awaited.

This means that employers and employees alike will most likely have to pay for tests if they want them.  Employers will need to decide firstly whether they still need employees to take tests, and secondly, who will pay for them.  If employers pay, the financial cost will need to be weighed against the risk of an outbreak at work and alongside other measures that could be taken to reduce risk.  If an employer decides to deduct the cost of a test from salaries, there will need to be an agreement in place and care should be taken to ensure that such deductions do not bring the employee’s total pay below the National Minimum Wage.  If the employee is instructed to pay, they may argue that this is unreasonable, and the employer may have difficulty proving whether or not tests have actually been purchased.

As a compromise, an employer may consider offering testing to those who are in particularly high-risk roles rather than the whole workforce, although care should be taken not to discriminate against particular individuals.

Contact our HR Consultants today

The Government has promised additional guidance to support workplaces over the coming months, but it is clear that there is now a move towards encouraging employers to make their own decisions about what is best for their workforce, with less reliance on overall legislation.

If you are an employer needing guidance on your next steps, or if you would like further information about any of the options suggested in this article, contact the Ashtons HR Consulting team by using our online enquiry form or by calling 0333 222 0989.